Texas 2009 - 81st Regular

Texas House Bill HB63 Compare Versions

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1	1	By: Aycock, et al. (Senate Sponsor - Nelson) H.B. No. 63
2	2	(In the Senate - Received from the House April 27, 2009;
3	3	May 12, 2009, read first time and referred to Committee on
4	4	Administration; May 21, 2009, reported adversely, with favorable
5	5	Committee Substitute by the following vote: Yeas 5, Nays 0;
6	6	May 21, 2009, sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR H.B. No. 63 By: Shapiro
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to the conservatorship or possession of, or access to, a
13	13	child by a parent who is deployed by the military.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Chapter 153, Family Code, is amended by adding
16	16	Subchapter L to read as follows:
17	17	SUBCHAPTER L. MILITARY DUTY
18	18	Sec. 153.701. DEFINITIONS. In this subchapter:
19	19	(1) "Designated person" means the person ordered by
20	20	the court to temporarily exercise a conservator's rights, duties,
21	21	and periods of possession and access with regard to a child during
22	22	the conservator's military deployment, military mobilization, or
23	23	temporary military duty.
24	24	(2) "Military deployment" means the temporary
25	25	transfer of a service member of the armed forces of this state or
26	26	the United States serving in an active-duty status to another
27	27	location in support of combat or some other military operation.
28	28	(3) "Military mobilization" means the call-up of a
29	29	National Guard or Reserve service member of the armed forces of this
30	30	state or the United States to extended active duty status. The term
31	31	does not include National Guard or Reserve annual training.
32	32	(4) "Temporary military duty" means the transfer of a
33	33	service member of the armed forces of this state or the United
34	34	States from one military base to a different location, usually
35	35	another base, for a limited time for training or to assist in the
36	36	performance of a noncombat mission.
37	37	Sec. 153.702. TEMPORARY ORDERS. (a) If a conservator is
38	38	ordered to military deployment, military mobilization, or
39	39	temporary military duty that involves moving a substantial distance
40	40	from the conservator's residence so as to materially affect the
41	41	conservator's ability to exercise the conservator's rights and
42	42	duties in relation to a child, either conservator may file for an
43	43	order under this subchapter.
44	44	(b) The court may render a temporary order in a proceeding
45	45	under this subchapter regarding:
46	46	(1) possession of or access to the child; or
47	47	(2) child support.
48	48	(c) A temporary order rendered by the court under this
49	49	subchapter may grant rights to and impose duties on a designated
50	50	person regarding the child, except the court may not require the
51	51	designated person to pay child support.
52	52	(d) After a conservator's military deployment, military
53	53	mobilization, or temporary military duty is concluded, and the
54	54	conservator returns to the conservator's usual residence, the
55	55	temporary orders under this section terminate and the rights of all
56	56	affected parties are governed by the terms of any court order
57	57	applicable when the conservator is not ordered to military
58	58	deployment, military mobilization, or temporary military duty.
59	59	Sec. 153.703. APPOINTING DESIGNATED PERSON FOR CONSERVATOR
60	60	WITH EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD. (a)
61	61	If the conservator with the exclusive right to designate the
62	62	primary residence of the child is ordered to military deployment,
63	63	military mobilization, or temporary military duty, the court may
64	64	render a temporary order to appoint a designated person to exercise
65	65	the exclusive right to designate the primary residence of the child
66	66	during the military deployment, military mobilization, or
67	67	temporary military duty in the following order of preference:
68	68	(1) the conservator who does not have the exclusive
69	69	right to designate the primary residence of the child;
70	70	(2) if appointing the conservator described by
71	71	Subdivision (1) is not in the child's best interest, a designated
72	72	person chosen by the conservator with the exclusive right to
73	73	designate the primary residence of the child; or
74	74	(3) if appointing the conservator described by
75	75	Subdivision (1) or the person chosen under Subdivision (2) is not in
76	76	the child's best interest, another person chosen by the court.
77	77	(b) A designated person named in a temporary order rendered
78	78	under this section has the rights and duties of a nonparent
79	79	appointed as sole managing conservator under Section 153.371.
80	80	(c) The court may limit or expand the rights of a nonparent
81	81	named as a designated person in a temporary order rendered under
82	82	this section as appropriate to the best interest of the child.
83	83	Sec. 153.704. APPOINTING DESIGNATED PERSON TO EXERCISE
84	84	VISITATION FOR CONSERVATOR WITH EXCLUSIVE RIGHT TO DESIGNATE
85	85	PRIMARY RESIDENCE OF CHILD IN CERTAIN CIRCUMSTANCES. (a) If the
86	86	court appoints the conservator without the exclusive right to
87	87	designate the primary residence of the child under Section
88	88	153.703(a)(1), the court may award visitation with the child to a
89	89	designated person chosen by the conservator with the exclusive
90	90	right to designate the primary residence of the child.
91	91	(b) The periods of visitation shall be the same as the
92	92	visitation to which the conservator without the exclusive right to
93	93	designate the primary residence of the child was entitled under the
94	94	court order in effect immediately before the date the temporary
95	95	order is rendered.
96	96	(c) The temporary order for visitation must provide that:
97	97	(1) the designated person under this section has the
98	98	right to possession of the child for the periods and in the manner
99	99	in which the conservator without the exclusive right to designate
100	100	the primary residence of the child is entitled under the court order
101	101	in effect immediately before the date the temporary order is
102	102	rendered;
103	103	(2) the child's other conservator and the designated
104	104	person under this section are subject to the requirements of
105	105	Section 153.316, with the designated person considered for purposes
106	106	of that section to be the possessory conservator;
107	107	(3) the designated person under this section has the
108	108	rights and duties of a nonparent possessory conservator under
109	109	Section 153.376(a) during the period that the person has possession
110	110	of the child; and
111	111	(4) the designated person under this section is
112	112	subject to any provision in a court order restricting or
113	113	prohibiting access to the child by any specified individual.
114	114	(d) The court may limit or expand the rights of a nonparent
115	115	designated person named in a temporary order rendered under this
116	116	section as appropriate to the best interest of the child.
117	117	Sec. 153.705. APPOINTING DESIGNATED PERSON TO EXERCISE
118	118	VISITATION FOR CONSERVATOR WITHOUT EXCLUSIVE RIGHT TO DESIGNATE
119	119	PRIMARY RESIDENCE OF CHILD. (a) If the conservator without the
120	120	exclusive right to designate the primary residence of the child is
121	121	ordered to military deployment, military mobilization, or
122	122	temporary military duty, the court may award visitation with the
123	123	child to a designated person chosen by the conservator, if the
124	124	visitation is in the best interest of the child.
125	125	(b) The temporary order for visitation must provide that:
126	126	(1) the designated person under this section has the
127	127	right to possession of the child for the periods and in the manner
128	128	in which the conservator described by Subsection (a) would be
129	129	entitled if not ordered to military deployment, military
130	130	mobilization, or temporary military duty;
131	131	(2) the child's other conservator and the designated
132	132	person under this section are subject to the requirements of
133	133	Section 153.316, with the designated person considered for purposes
134	134	of that section to be the possessory conservator;
135	135	(3) the designated person under this section has the
136	136	rights and duties of a nonparent possessory conservator under
137	137	Section 153.376(a) during the period that the designated person has
138	138	possession of the child; and
139	139	(4) the designated person under this section is
140	140	subject to any provision in a court order restricting or
141	141	prohibiting access to the child by any specified individual.
142	142	(c) The court may limit or expand the rights of a nonparent
143	143	designated person named in a temporary order rendered under this
144	144	section as appropriate to the best interest of the child.
145	145	Sec. 153.706. TEMPORARY ORDER FOR CHILD SUPPORT. A
146	146	temporary order rendered under this subchapter may result in a
147	147	change of circumstances sufficient to justify a temporary order
148	148	modifying the child support obligations of a party.
149	149	Sec. 153.707. EXPEDITED HEARING. (a) On a motion by the
150	150	conservator who has been ordered to military deployment, military
151	151	mobilization, or temporary military duty, the court shall, for good
152	152	cause shown, hold an expedited hearing if the court finds that the
153	153	conservator's military duties have a material effect on the
154	154	conservator's ability to appear in person at a regularly scheduled
155	155	hearing.
156	156	(b) A hearing under this section shall, if possible, take
157	157	precedence over other suits affecting the parent-child
158	158	relationship not involving a conservator who has been ordered to
159	159	military deployment, military mobilization, or temporary military
160	160	duty.
161	161	(c) On a motion by any party, the court shall, after
162	162	reasonable advance notice and for good cause shown, allow a party to
163	163	present testimony and evidence by electronic means, including by
164	164	teleconference or through the Internet.
165	165	Sec. 153.708. ENFORCEMENT. Temporary orders rendered under
166	166	this subchapter may be enforced by or against the designated person
167	167	to the same extent that an order would be enforceable against the
168	168	conservator who has been ordered to military deployment, military
169	169	mobilization, or temporary military duty.
170	170	Sec. 153.709. ADDITIONAL PERIODS OF POSSESSION OR ACCESS.
171	171	(a) Not later than the 90th day after the date a conservator
172	172	without the exclusive right to designate the primary residence of
173	173	the child who is a member of the armed services concludes the
174	174	conservator's military deployment, military mobilization, or
175	175	temporary military duty, the conservator may petition the court to:
176	176	(1) compute the periods of possession of or access to
177	177	the child to which the conservator would have otherwise been
178	178	entitled during the conservator's deployment; and
179	179	(2) award the conservator additional periods of
180	180	possession of or access to the child to compensate for the periods
181	181	described by Subdivision (1).
182	182	(b) If the conservator described by Subsection (a)
183	183	petitions the court under Subsection (a), the court:
184	184	(1) shall compute the periods of possession or access
185	185	to the child described by Subsection (a)(1); and
186	186	(2) may award to the conservator additional periods of
187	187	possession of or access to the child for a length of time and under
188	188	terms the court considers reasonable, if the court determines that:
189	189	(A) the conservator was on military deployment,
190	190	military mobilization, or temporary military duty in a location
191	191	where access to the child was not reasonably possible; and
192	192	(B) the award of additional periods of possession
193	193	of or access to the child is in the best interest of the child.
194	194	(c) In making the determination under Subsection (b)(2),
195	195	the court:
196	196	(1) shall consider:
197	197	(A) the periods of possession of or access to the
198	198	child to which the conservator would otherwise have been entitled
199	199	during the conservator's military deployment, military
200	200	mobilization, or temporary military duty, as computed under
201	201	Subsection (b)(1);
202	202	(B) whether the court named a designated person
203	203	under Section 153.705 to exercise limited possession of the child
204	204	during the conservator's deployment; and
205	205	(C) any other factor the court considers
206	206	appropriate; and
207	207	(2) is not required to award additional periods of
208	208	possession of or access to the child that equals the possession or
209	209	access to which the conservator would have been entitled during the
210	210	conservator's military deployment, military mobilization, or
211	211	temporary military duty, as computed under Subsection (b)(1).
212	212	(d) After the conservator described by Subsection (a) has
213	213	exercised all additional periods of possession or access awarded
214	214	under this section, the rights of all affected parties are governed
215	215	by the terms of the court order applicable when the conservator is
216	216	not ordered to military deployment, military mobilization, or
217	217	temporary military duty.
218	218	SECTION 2. Section 156.006, Family Code, is amended by
219	219	adding Subsection (c) to read as follows:
220	220	(c) Subsection (b)(2) does not apply to a conservator who
221	221	has the exclusive right to designate the primary residence of the
222	222	child and who has temporarily relinquished the primary care and
223	223	possession of the child to another person during the conservator's
224	224	military deployment, military mobilization, or temporary military
225	225	duty, as those terms are defined by Section 153.701.
226	226	SECTION 3. Section 156.101, Family Code, is amended to read
227	227	as follows:
228	228	Sec. 156.101. GROUNDS FOR MODIFICATION OF ORDER
229	229	ESTABLISHING CONSERVATORSHIP OR POSSESSION AND ACCESS. (a) The
230	230	court may modify an order that provides for the appointment of a
231	231	conservator of a child, that provides the terms and conditions of
232	232	conservatorship, or that provides for the possession of or access
233	233	to a child if modification would be in the best interest of the
234	234	child and:
235	235	(1) the circumstances of the child, a conservator, or
236	236	other party affected by the order have materially and substantially
237	237	changed since the earlier of:
238	238	(A) the date of the rendition of the order; or
239	239	(B) the date of the signing of a mediated or
240	240	collaborative law settlement agreement on which the order is based;
241	241	(2) the child is at least 12 years of age and has filed
242	242	with the court, in writing, the name of the person who is the
243	243	child's preference to have the exclusive right to designate the
244	244	primary residence of the child; or
245	245	(3) the conservator who has the exclusive right to
246	246	designate the primary residence of the child has voluntarily
247	247	relinquished the primary care and possession of the child to
248	248	another person for at least six months.
249	249	(b) Subsection (a)(3) does not apply to a conservator who
250	250	has the exclusive right to designate the primary residence of the
251	251	child and who has temporarily relinquished the primary care and
252	252	possession of the child to another person during the conservator's
253	253	military deployment, military mobilization, or temporary military
254	254	duty, as those terms are defined by Section 153.701.
255	255	SECTION 4. Section 156.102, Family Code, is amended by
256	256	adding Subsection (d) to read as follows:
257	257	(d) Subsection (b)(3) does not apply to a person who has the
258	258	exclusive right to designate the primary residence of the child and
259	259	who has temporarily relinquished the primary care and possession of
260	260	the child to another person during the conservator's military
261	261	deployment, military mobilization, or temporary military duty, as
262	262	those terms are defined by Section 153.701.
263	263	SECTION 5. Section 156.105, Family Code, is amended to read
264	264	as follows:
265	265	Sec. 156.105. MODIFICATION OF ORDER BASED ON MILITARY DUTY
266	266	[DEPLOYMENT]. [(a) In this section, "military deployment" means
267	267	military duty ordered for a period of more than six months during
268	268	which the person ordered to duty:
269	269	[(1) is not provided the option of being accompanied
270	270	by the person's child; and
271	271	[(2) is serving in a location where access to the
272	272	person's child is not reasonably possible.
273	273	[(b)] The military duty of a conservator who is ordered to
274	274	military deployment, military mobilization, or temporary military
275	275	duty, as those terms are defined by Section 153.701, does not by
276	276	itself constitute [of a person who is a possessory conservator or a
277	277	joint managing conservator without the exclusive right to designate
278	278	the primary residence of the child is] a material and substantial
279	279	change of circumstances sufficient to justify a modification of an
280	280	existing court order or portion of a decree that sets the terms and
281	281	conditions for the possession of or access to a child except that
282	282	the court may render a temporary order under Subchapter L, Chapter
283	283	153.
284	284	[(c) If the court determines that modification is in the
285	285	best interest of the child, the court may modify the order or decree
286	286	to provide in a manner consistent with Section 153.3161 for
287	287	possession of the child during the period of the military
288	288	deployment by a person designated by the deployed conservator.]
289	289	SECTION 6. Sections 153.3161 and 156.410, Family Code, are
290	290	repealed.
291	291	SECTION 7. Sections 156.006, 156.101, 156.102, and 156.105,
292	292	Family Code, as amended by this Act, apply only to a suit affecting
293	293	the parent-child relationship pending in a trial court on or filed
294	294	on or after the effective date of this Act.
295	295	SECTION 8. This Act takes effect September 1, 2009.
296	296	* * * * *